Upshaw v. Sunrise Community of Tennessee, Inc.

Appeal
from the Circuit Court for Knox County No. 3-491-11Deborah C.
Stevens, Judge

This
appeal concerns a claim of retaliatory discharge. After a
trial before a jury, judgment was entered against the
defendant employer. The plaintiff was awarded $225, 000 in
compensatory damages and $200, 000 in punitive damages. The
employer appeals. We affirm.

John
W. McClarty, J., delivered the opinion of the court, in which
Charles D. Susano, Jr., and Thomas R. Frierson, II, JJ.,
joined.

OPINION

JOHN
W. MCCLARTY, JUDGE

I.
BACKGROUND

In
Tennessee, services to persons with developmental
disabilities are administered by the Tennessee Department of
Developmental Disabilities ("DIDD"). Sunrise
Community of Tennessee, Inc. ("Sunrise") is an
organization paid by the State to provide medical care and
services to serve such individuals for the duration of their
lives. An employee at Sunrise testified that

[s]upported living is the term that involves folks who live
in their own homes in the community. [Sunrise] provide[s]
staffing to them around the clock. The staff is there to help
them to learn skills to be as independent as they possible
can be but also to provide support to them for things that
they can't do on their own. So the staff is there to help
them with personal hygiene, grooming, and dress. Preparing
meals in their home. They provide transportation for them to
medical appointments, go out in the community, to go visit
with family and friends, to go to church, to be involved in
community activities of their choosing.

The
plaintiff in this case, Latisia Upshaw, began working for
Sunrise as an office worker in 2008. At some point, Upshaw
began providing in-home Licensed Practical Nurse
("LPN") care to Sunrise's client, H.G. Upshaw
typically worked 16 hour shifts on Saturday and Sunday.

H.G.'s
many medical problems included gastroesophageal reflux
disease ("GERD"), a history of a gastrointestinal
("GI") bleed, difficulty swallowing (dysphagia),
and chronic obstructive pulmonary disease ("COPD").
She was on continuous oxygen and tube feedings. A hospice
patient, H.G. was limited to occasional "pleasure
feedings" of 2 teaspoons of thin liquids with each meal.
Because overfeeding of H.G. could lead to the development of
aspiration pneumonia, standing doctor's orders provided
that H.G. was to be taken immediately for x-rays and lab work
if she presented with symptoms of that condition.

Throughout
each shift, Sunrise's nurses were required to document
the activities and medical events of patients. During an
assessment, a nurse first checks the nurses' notes,
summary sheets, records and logs from previous shifts in
order to understand the patient's condition. According to
Upshaw, upon starting her shifts, she began noticing that
H.G. was exhibiting symptoms of lung congestion, wheezing,
fever, and strong smelling urine. She was also vomiting thick
green and yellow phlegm. According to Upshaw, these are signs
of overfeeding. Additionally, Upshaw claimed to notice
discrepancies regarding feeding in the nursing records from
the previous nursing shifts. One summary sheet reflected H.G.
being fed 2 tablespoons of pleasure foods instead of 2
teaspoons. According to Upshaw, on June 21, 2010, LPN Marie
Ford documented at the end of her shift that H.G. "did
not eat . . . ."; however, the oncoming nurse wrote that
when she arrived for her shift, H.G. was seated at the dining
room table eating food prepared by the day nurse, i.e., Ford.
Another feeding record denoted "5tp of potato
salad." Upshaw also contends that she observed H.G.
projectile vomiting chunks of non-pureed food.
Additionally, H.G. informed Upshaw that Ford was overfeeding
her. Upshaw recalled that H.G. would argue with her about
wanting more food and would sometimes say, "Marie gives
me more." Upshaw concluded that Ford was documenting
that she was providing H.G. with the proper amount of food,
but she was actually giving her more.

According
to Upshaw, she reported her thoughts regarding H.G.'s
overfeeding in writing with Sunrise, as the Sunrise Employee
Handbook required nurses to report suspected incidents of
neglect to Sunrise in order that the employer could
"conduct its own investigation . . . ." Upshaw
recalled that Sunrise's nurses were specifically and
repeatedly instructed to report neglect internally up a chain
of command. Thus, according to Upshaw, she began at the end
of 2009 and continued up until September 2010 to report
H.G.'s overfeeding to a number of staff at Sunrise,
including her supervisor, her supervisor's supervisor,
incident management, and Sunrise's compliance officer.
Upshaw claims that she even questioned a State employee about
how she could file a grievance to stop H.G.'s
overfeeding. Instead of taking action, however, Upshaw's
supervisor and director of nursing, Cathie Cardwell
("the DON") told her that the nurse involved, Ford,
"was thinking with her heart . . . ."

Retaliation

Photographs
and Purchases

According
to Upshaw, after she reported H.G.'s overfeeding, Ford
and others began to retaliate against her. On May 12, 2010,
four months prior to H.G.'s hospitalizations, Sunrise
gave Upshaw a "Disciplinary Warning Notice & Action
Taken" for two "violations" of company policy:
"Photographing individual without written consent &
Purchasing gifts (clothes) for individual against company
policy."

The
violations arose from H.G.'s request to have her hair
colored. H.G.'s sister (her conservator) and the DON each
agreed to allow the coloring of H.G.'s hair. Once
H.G.'s makeover occurred, including make up and a new
outfit, [1] the sister arrived for a party on February
17, 2010. The sister requested pictures of H.G. with the
Sunrise staff. Because Upshaw had taken some of the pictures
at the request of the sister, she was cited for violating
corporate policy[2] and received a formal write up for this
incident on May 12, 2010.[3]

License Renewal

Another
write up was received when Upshaw allowed her nursing license
to lapse.[4] Upshaw's LPN license, which required
renewal every two years on her birthday, expired on April 30,
2010. Upshaw asserts that weeks prior to that date, on March
15, 2010, she had scheduled vacation time for the weekend of
her birthday. While she was off, a flood struck Nashville and
she was unable to renew her license before her next shift the
following weekend. According to Upshaw, if the flood had not
occurred, her license would have been renewed within 24 hours
before she had to return to work again. However, after she
was unable to quickly renew her license, Upshaw took two
additional vacation days until the renewed license was
received. Sunrise notes that the lapse of the nursing
license, on its own, was grounds for immediate termination of
Upshaw's employment.

Upshaw
claims that Sunrise provided reminders for license renewals
to employees, but she was not provided with one. Indeed,
Sunrise employee Ann Williams admitted that she had
"talked with several" nurses and they
"indicated that . . . a reminder notice [was sent] to
them in the mail." The trial court observed that Sunrise
did not dispute that the employer regularly placed
notifications in the monthly newsletter of renewal dates for
licenses and certificates but claimed that there was no
policy requiring them to do so.

H.G.'s
Hospitalization

On
September 4, 2010, Upshaw assessed H.G. and determined that
she was exhibiting symptoms of crackling sounds in her lungs,
wheezing, decreased oxygen saturation, and vomiting. As
directed by the standing orders, Upshaw took H.G. to
outpatient services to have x-rays and lab work completed.
According to Upshaw, she advised her supervisor at that time
that H.G. was being overfed and that she was taking the
client for tests. As they were leaving outpatient services,
H.G. began projectile vomiting large chunks of food from her
mouth and her nose. In response, Upshaw took H.G. immediately
to the emergency room, where she was admitted to the hospital
with pneumonia. Upshaw informed the emergency room doctor
that, in her opinion, H.G. had been overfed non-pureed food.

Prior
to Upshaw's next nursing shift the following Saturday,
H.G. had been released from the hospital back to the nursing
care of Sunrise. During Upshaw's shift, on September 11,
2010, H.G. again projectile vomited chunks of food and was
admitted to the hospital with double aspiration pneumonia.
Upshaw told the same emergency room doctor that the same
person was continuing to overfeed H.G. and that nothing was
being done by the employer to stop it. When H.G. was again
released from the hospital back to the same nurse Upshaw
believed was engaging in the overfeeding, Upshaw called the
State hotline to report Sunrise's failure to stop the
alleged neglect. According to Upshaw, a little over a month
later, on October 21, 2010, Sunrise informed her that she was
being fired because she had lied to the emergency room doctor
about the overfeeding.

DIDD
Investigator

A DIDD
investigator investigated Upshaw's complaint of neglect,
requiring Sunrise to provide documents reflecting H.G.'s
medical care. The DIDD investigator's file consisted of
281 pages. The first 12 pages of the file are the
investigator's final report, issued on September 29,
2010. The report describes the investigation and summarizes
all the evidence upon which the investigator relied in making
his decision about whether H.G. was neglected. The DIDD
investigator found that he could not determine definitively
that H.G. was being overfed; thus, he could not conclude that
there had been neglect. A physician where H.G. was treated
informed the investigator that there was no medical way to
determine for certain if anyone had overfed H.G. because she
could easily aspirate on the fluid that she was receiving
through the G Tube. The investigator's report did cite
Sunrise ...

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